A dental assistant took a medical leave that was supposed to last four weeks. After six weeks and a request for three more weeks, the dentist told the assistant he was unable to hold her position any longer and was going to hire a replacement. The assistant informed the dentist of several things: he couldn’t fire her because she was on medical leave; she would be able to work only five hours a day while recuperating from the surgery; and the dentist was obligated to pay her medical insurance while she was not working.
Employer obligations vary with each type of leave. Some of the variables of medical leave include: Was the employee injured on or off the job? What is the nature of the injury or what is the medical reason for the leave? Is the absence or injury covered by federal regulation, such as the Family Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA)? Has the state enacted legislation that may supersede federal regulations or the office written leave policies and/or any precedents that may have been established with similar situations in the past?
Employers who don’t understand these obligations may feel like they’re being held hostage. In this case, the medical leave was for a nonwork-related injury. The practice had six employees and was located in an area where state law prohibited disability discrimination in employment.
Although the injury was not work-related, the law prohibiting discrimination against employees unable to work due to a “disabling” medical condition was applicable. Therefore, unless the employee could not perform the essential functions of the job and no reasonable accommodation could be provided, the employee could not be discharged from employment.
In this situation, the doctor erroneously assumed no accommodation was necessary since the injury was not work-related and the employee was apparently not able to work.
In evaluating medical or injury leave requests, consider:
➤ Was the employee injured on or off the job?
➤ Was the employee asked to submit a request for leave with accompanying medical documentation?
➤ What do your written policies or past practices require?
➤ What state or federal laws apply to your situation, and have applicable laws been properly applied?
➤Is an ADA-compliant job description in place that can be provided to the employee and furnished to the employee’s health-care provider to ensure the assessment that the doctor makes is an informed one regarding the ability of the employee to perform his or her essential duties?
➤ Have all appropriate forms been completed to provide essential documentation?
➤Have you consulted with an attorney, state Bureau of Labor representative, or an HR consulting firm such as Bent Ericksen and Associates?
In general, employers are not required to retain individuals who are unable to perform their essential job functions with or without reasonable accommodation and/or cannot safely perform their job duties. It is essential that this assessment be made objectively and interactively with the employee and his or her health-care provider, and that it be consistent with legal requirements.
Essential functions are those that a person must be able to perform unaided or with the assistance of a reasonable accommodation. A reasonable accommodation is defined as “a modification or adjustment to the job, the work environment, or the way things are usually done that enables a qualified individual with a disability to enjoy an equal employment opportunity.” Such accommodation is not necessary if it causes an employer “undue hardship.” Undue hardship means “an action requiring significant difficulty or expense.”
If an employee asks for a leave of absence that is not covered by FMLA, the ADA, or applicable state laws, it may or may not be granted or the job may or may not be held, at the employer’s discretion. (See our “Leave of Absence Application,” Form No. 409.) However, keep in mind that whatever decision an employer makes could later be construed as precedent-setting.
Typically, a nonwork-related medical leave of absence is without pay or benefits, regardless of whether the employee is paid a salary or an hourly rate.
Note: Due to limited space, the analysis of this topic has been significantly abbreviated. As noted above, when addressing such matters, we strongly recommend that professional assistance be obtained.
Bent Ericksen is the founder and Tim Twigg is the president of Bent Ericksen and Associates. For more than 25 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. Both authors are members of the Academy of Dental Management Consultants. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, contact them at (800) 679-2760 or at www.bentericksen.com.